1. MUHAMMAD GUL, J.-This petition for special leave is from the judgment- of a learned Single Judge of the Lahore High Court in R. S. A. No. 148 of 1969 maintaining the judgments of two Courts below dismissing the petitioner's suit to challenge the recovery of Rs.57,085.45 as arrears of land revenue.
2. The facts briefly are these On 15-9-59 the petitioner (plaintiff in the suit) was appointed by the Deputy Director of Agriculture, Sargodha, commission agent for village Uchhali in District Sargodha for the sale of chemical fertilisers and seeds on behalf of the Provincial Government. Under the terms of agreement the petitioner was to deposit the sale proceeds with the Agriculture Assistant, Naushera and Khushab, and charge com--mission at a stipulated rate on the sale proceeds. The agency was terminated m 196_. On 29-7-63 the petitioner received a notice from the Deputy Director of Agriculture, Sargodha requir--ing him to pay Rs. 57,085.45 outstanding against him on account of the sale price of the fertilisers and seeds sold by him. The petitioner denied his liability alleging that he had deposited the entire sale proceeds; rather he counter-claimed a sum of Rs.
3. 1,000 due to him on account of his commission. The petitioner was eventually declared "defaulter" under subsection (2) of section 3 of the West Pakistan Government Dues Recovery Ordinance, 1962, (W. P. Ordinance XXII of 1962) as a result of which the amount became recoverable as arrears of land revenue under the Revenue Recovery Act, 1890 (Act I of 1890). The petitioner was arrested for detention in the civil prison. He then filed writ petition (Mahboob Alam v. Nalb Tehstldar W. P. 80/65) to have the proceedings for the recovery of the aforesaid amount by coercive processes including his detention, be declared to be without lawful authority. The petition was dismissed by a Division Bench on 16-7-65. This was followed by a suit for a declaration and per--manent injunction in the Court of Civil Judge, 1st Class, Sargodha. The suit was dismissed on a preliminary objection by the defendant-respondents, that the suit was not competent unless the petitioner deposited the amount claimed under protest as required by section 4 of the 1890 Act. In reaching this conclusion the learned trial Judge relied upon the decision of the circuit Bench of the former High Court of West Pakistan at Baghdad-ul-- Jadid in Noor Muhammad v. The Government of West Pakistan (PLD1966BJ19).
4. Learned counsel for the petitioner basing himself on Abdul Latif v. Government of West Pakistan (PLD1962SC384), Abdul Hamld Khan v. Government of West Pakistan (PLD 1969 Pesh. 324) and Province of West Pakistan v. Muhammad Ayub Khuhro (PLD 1967 Kar. 673) argued that there was "no proper determination of the sum due from the petitioner", that the petitioner had no notice whatever from the Deputy Director of Agriculture, Sargodha, and therefore the order for the recovery of the aforesaid amount by coercive process as arrears of land revenue offended against the principles of natural justice. Abdul Latlf's case was of a treasury contractor. At the end of his term of contract, a deficiency of Rs.7,484 odd in the stamps of the treasury was found which was sought to be recovered by Tehsildar, at the instance of the Deputy Commissioner on a certificate of the Treasury Officer by bringing into operation the coercive -provisions in section 69 of the Punjab Land Revenue Act, 1887, G without serving any show-cause notice on the appellant.
5. The principal question arising for the conduct of the Court was stated thus :- "The main issue requiring determination in this case is whether the Deputy Commissioner of Peshawar is entitled to recover from this appellant a sum of Rs. 7,484-3-3 alleged to be due on account of `deficiencies in remittance and shortage in stamps etc." as an arrear of land revenue without giving him an opportunity to question the correctness of the said alleged liability."
6. It was not disputed in that case that no notice had been issued to the former treasurer to appear before the Treasury Officer to question the correctness of his liability. It was held in these circumstances that the action taken by the Deputy Commissioner against the appellant in that case could not be validly taken without giving him an opportunity of being heard. In - the Peshawar case also no notice to show cause was given to the appellant fn the High Court who incidentally was also the Government Treasurer and the coercive proceedings for the recovery of the amount certified as due were initiated without any notice to the former Treasurer. In Muhammad Ayub Khuhro's case the demand was in respect of arrears of rent of official residence HARDLY HOUSE occupied by him. The demand as in the other two precedent cases was peremptory, no notice having been given to him to determine the amount due.
7. In the instant case the facts are radically different. From the copy of the judgment in the writ petition filed by the petitioner herein prior to the institution of the suit, it appeared that the position taken by the petitioner was that he had paid the entire amount to the Agriculture Assistant against receipts duly executed by him and therefore he was not "a defaulter" within the mean--ing of the 1962 Ordinance. Upon this plea the learned Judges of the Division Bench adjourned the case more than once to enable the petitioner to produce the receipts which he secured from the Agriculture Assistant. This he failed to do, although the case was adjourned a number of times. From the examination of the record which was summoned by the learned Judges of the Division Bench from the Assistant Director, Agriculture it also transpired that numerous notices were issued to petitioner before his liability for the sum outstanding against him was determined. Not only that he even appeared in response to one of such notices. Therefore the learned Judges of the Division Bench observed that it was "factually incorrect that the petitioner was not given an opportunity to show cause by the Deputy Director, Agriculture" This in our opinion clearly distinguishes the instant case from the rule laid down in the precedent cases.] From the judgment of the learned District Judge in the firstl Appeal filed by the petitioner it also appears that the petitioner's learned counsel in that Court conceded that the amount was recoverable as arrears of land revenue.
8. On the above facts therefore the petitioner's suit was rightly dismissed on a preliminary objection that it could not proceed under section 4 of the Revenue Recovery Act unless he deposited the entire amount due in the first instance.
9. For the foregoing reasons there is no merit in this petition which is dismissed.